CONSTANCE V. HOPE vs. RICHARD LANDAU & others. [Note 1]

FINE, J. The plaintiff brought suit against a psychology intern, a licensed psychologist and the hospital where both worked, alleging negligence and breach of contract in the dissemination by them of certain confidential information obtained in the course of providing treatment. The defendants prevailed on a motion for summary judgment. On appeal, the plaintiff claims that there are material disputed issues of fact which, if resolved in her favor, would entitle her to recover on her claims. We have reviewed all of the material before the judge when he considered the motion, and we conclude that the

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plaintiff does not have meritorious claims, even asuming all of the facts on which she relies to be true.

We recite the facts, many of which are disputed, in a summary as favorable to the plaintiff as the affidavits and discovery material allow. In 1979, the plaintiff and her fifteen year old daughter sought psychological counseling at the defendant McLean Hospital. They were treated there by the defendant Richard Landau, a psychology intern who was being supervised by the defendant Isaac Greenberg, a licensed psychologist. Landau was represented to the plaintiff to be a licensed psychologist, which at the time he was not. In 1980, the child became the subject of a "CHINS [child in need of services] petition" (see G. L. c. 119, Sections 21, 39E) brought by her father in the District Court in Cambridge. In April, 1980, at the father's request, Landau sent a letter to a social worker at the District Court in Malden, [Note 2] evaluating in detail the psychological condition of the plaintiff's daughter. The letter referred, among other things, to the child's self-destructive behavior resulting from her difficult home environment. The letter included some confidential information provided by the plaintiff to Landau in the course of treatment. She had never given her consent to Landau to disclose the information. The letter later surfaced in the hands of a judge at a hearing held at the District Court in Cambridge concerning the child's custody. The plaintiff first learned of the letter's existence at that hearing. She suffered harm as a result of the disclosures in the letter.

It has recently been decided that a physician owes a duty to his patient not to disclose (except properly in the course of testimony in court) confidential information obtained in the course of providing treatment, and an aggrieved party may recover damages for breach of that duty. Alberts v. Devine, 395 Mass. 59, 65-69 (1985). The policy behind this recently

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recognized right is to encourage a patient's candor so that he may receive the full benefit of professional treatment. There is no reason why it would not apply with equal force to psychologists. See G. L. c. 233, Section 20B, as amended through St. 1977, c. 817. The rule itself, however, contains exceptions (in addition to that for proper court testimony). One, referred to in Alberts, supra at 68, permits disclosure when necessary to meet a serious danger to the patient or others. One aspect of that general exception to the requirement of confidentiality finds expression in G. L. c. 119, Section 51A, which sets forth a social policy conflicting with the policy favoring protection of confidences. The social policy underlying the statute is to encourage health professionals and others to report their suspicions of child abuse so that children at risk may be protected. We do not consider whether other exceptions may not exist already or develop in the course of consideration of the duty recognized in Alberts, supra.

As of April 14, 1980, the date of Landau's letter, Section 51A, as amended through St. 1979, c. 312, provided that any one of a number of categories of professionals, including family counselors, with "reasonable cause to believe that a child under the age of eighteen years is suffering serious physical or emotional injury resulting from abuse inflicted upon him . . . or from neglect . . ." must report such condition to the department of social services in writing. [Note 3] According to the plaintiff's affidavit, the counseling sessions with her, her daughter, and Landau included "extensive discussions . . . with regard to personal family problems . . ." Landau was seen by the plaintiff, her daughter, and at a later time by her estranged husband, in his role as a family counselor. Landau therefore was

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required by the statute to make a report of any suspected child abuse or neglect which he discovered in the course of those counseling sessions. [Note 4]

Landau's letter constituted such a written report. It concerned a child under eighteen, and the conditions described were "serious . . . emotional injur[ies]" resulting from "neglect" as those phrases are broadly construed in light of the clear purpose of the statute, to assume the protection of children. See Rep. A.G., Pub. Doc. No. 12, at 139 (May 27, 1975), and at 157 (June 15, 1975). We need not decide whether anyone acted improperly in sending the letter to the Cambridge court. That transmittal cannot in any way be attributed to the defendants.

Section 51A, as amended through St. 1979, c. 312, provides that "No person so required to report shall be liable in any civil or criminal action by reason of such report." It provided further that the patient-psychotherapist privilege (G. L. c. 233, Section 20B) "may not be invoked in any civil action arising out of a report made pursuant to [section 51A]." The Legislature, thus, has stated clearly its intent to place greater importance on the protection of children than on the right to be protected against the disclosure of confidential information. The writer of a report is immune from liability regardless of the correctness of his belief as to the child's injuries or their cause. Even the absence of good faith in making a report is immaterial to liability so long as the report is one which is mandatory under the statute. Even if good faith were material in this case, for purposes of summary judgment we would presume its existence in the absence of any allegation or indication of bad faith or improper motive. See Epstein v. Boston Housing Authy., 317 Mass. 297, 301 (1944); Liacos, Massachusetts Evidence 41, 51-60 (5th ed. 1981).

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Greenberg, Landau's supervisor, also signed the letter, but there is no indication that he sent it to anyone. In any event, the immunity language of section 51A would protect him from liability for the same reasons as it protects Landau. Since the two employees of the defendant hospital are not liable for sending the letter, no liability attaches to it under a theory of respondeat superior.

Judgment affirmed.